Sathyavrathan and others v. Karthikeyan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **WEDNESDAY,THE 12TH DAY OF DECEMBER 2018 / 21ST AGRAHAYANA, 1940** **SA.No. 584 of 1999** **[AGAINST THE JUDGMENT AND DECREE DATED 24.11.1998 IN AS 163/1994 OF DISTRICT COURT,THRISSUR]** **[AGAINST THE JUDGMENT AND DECREE DATED 16.06.1994 IN OS 510/1983 OF PRL.SUB COURT,THRISSUR]** ## **APPELLANTS/APPELLANTS/PLAINTIFFS:** - **1. SATHYAVRATHAN, AGRICULTURIST, S/O. VALIYAPARAMBIL KUMARAN,KAZHIMBRAM DESOM, PALLIPRAM AMSOM, CHAVAKKAD TALUK. [DIED] [LEGAL HEIRS IMPLEADED]** - **2 RAMACHANDRAN, AGRICULTURIST, S/O. VALIYAPARAMBIL KUMARAN, KAZHIMBRAM DESOM, PALLIPARAM AMSOM, CHAVAKKAD TALUK {DIED.)** **[LEGALREPRESENTATIVES IMPLEADED].** **3. BABU, AGRICULTURIST, S/O. VALIAPARAMBIL KESAVAN, KAZHIMBRAM DESOM, PALLIPRAM AMSOM, CHAVAKKAD TALUK** **4. BABIL, V. BABU BY NEXT FRIEND, BABU 3RD APPELLANT -DO- -DO- -DO-** ## *** ADDITIONAL APPELLANTS 5 TO 8:** **5. AMMINI RAMACHANDRAN, W/O. LATE RAMACHANDRAN, VALIPARAMBIL (H), P.O. KAZHIMBRAM, EDAMUTTAM, CHAVAKKAD TALUK, THRISSUR DISTRICT.** **6. JEEJA RADHAKRISHNAN, AVANIPULLI HOUSE,P.O. PANANGAD, KODUNGALLOOR TALUK -680665.** **7. SHIJA BABU, NELLIPPARAMBATHU HOUSE, KANDAMKULAM, KODUNGALOOR TALUK -680669** ## **8. V.R. SREEKUMARAN, S/O. VALIPARAMBIL RAMACHANDRAN, KAHIMBRAM, CHAVAKKAD.** _**[LEGAL REPRESENTATIVES OF DECEASED 2ND APPELLANT ARE IMPLEADED AS ADDITIONAL APPELLANTS 5 TO 8 AS PER ORDER DATED 03.10.2017 IN I.A.No. 2477 OF 2017]**_ S.A. No. 584 of 1999 2 ## _*****_ **ADDITIONAL APPELLANTS 9 TO 12:** **9. REMANI SATYAVRADHAN, W/O. LATE SATYAVRADHAN, PALLIPURAM, CHAVAKKAD.** **10. JAY SINGH, S/O. VALIPARAMBIL SATYAVRADHAN, KAZHIMBRAM, CHAVAKKAD.** **11. PRATHEEPKUMAR, S/O. VALIPARAMBIL SATYAVRADHAN, KAZHIMBRAM, CHAVAKKAD.** **12. V.S. SINA, D/O. VALIPARAMBIL SATYAVRADHAN, PANATT HOUSE, VAZHIYAMBALAM, KAIPAMANGALAM PIN-680681** _**[LEGAL HEIRS OF DECEASED 1ST APPELLANT ARE IMPLEADED AS ADDITIONAL APPELLANTS 9 TO 12 AS PER ORDER DATED 11.09.2018 IN I.A. NO. 1 OF 2018]**_ **BY ADVOCATES:** **SMT. V.P. SEEMANDINI (SR) SMT. S. KARTHIKA SRI. M.S. UNNIKRISHNAN** ## **RESPONDENT/RESPONDENT/DEFENDANT:** **KARTHIKEYAN, S/O. VADAKKUMCHERI PARANGODAN, EDAMUTTAM VILLAGE, DESOM, CHAVAKKAD TALUK** **BY ADVS.** **SHRI. S.V. BALAKRISHNA IYER SMT. M.M. TEENA** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 12.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **J U D G M E N T** The defeated plaintiffs in the suit are the appellants in the second appeal. The suit was one for redemption and for recovery of possession. The suit properties, 19 in number, belonged to a Hindu undivided tarwad. 27 items of properties held by the tarwad including S.A. No. 584 of 1999 3 the suit properties were outstanding on a usufructuary mortgage in favour of one Lonappan. Ext.B5 is the said mortgage. Exts.B6 and B7 are the documents executed between the parties to Ext.B5 when additional borrowings were made. While so, a suit was instituted by some of the members of the family as O.S. No. 21 of 1946 before the Sub Court, Ottappalam for partition of their shares in the properties of the tarwad. A preliminary decree was passed in the suit on 30.6.1948. Later, for discharging certain liabilities charged on the properties involved in the said suit, the court appointed one among the parties as receiver to borrow additional amounts from the mortgagee under Exhibit B5 mortgage. Ext.A1 is the document executed by the receiver appointed by the court in this connection in the year, 1949. Subsequently, the mortgagee under Exhibit B5 mortgage settled his rights over the suit properties in favour of his son, the first defendant. While the first defendant was holding the suit properties on that basis, for discharging certain additional liabilities charged on the properties involved in the suit, the court appointed another party to the suit as receiver to borrow amounts from the first defendant. Exhibit A2 is the document executed by the receiver appointed by the court in favour of the first defendant in this connection, in the year 1960. Later, the first defendant has transferred 3 out of the 19 items of properties involved in the present suit to the second defendant. Ext.B1 is the document executed by the first defendant in favour of the second defendant on 09.10.1967 in S.A. No. 584 of 1999 4 respect of items 1 to 3 properties. On the basis of Exhibit B1, the second defendant obtained possession of plaint item Nos. 1 to 3 properties. The case of the plaintiffs is that the alienation made by the first defendant is not binding on them and that they are entitled to seek redemption of the mortgages in respect of the suit properties and recover possession of the suit properties, ignoring the alienation made by persons claiming under the mortgagee. 2. Defendants 1 and 2 contested the suit by filing separate written statements. The essence of the contentions raised by the said defendants was that though the documents executed by the tarwad in favour of their predecessor Lonappan are styled as mortgages, the same constitute only lease arrangements and that therefore, they are entitled to fixity in respect of the properties in terms of the provisions of the Kerala Land Reforms Act. They have pointed out that the said plea was accepted by the Land Tribunal and the second defendant was issued Ext.B22 purchase certificate in respect of item No 1 to 3 properties. 3. The trial court considered the question as to whether the transaction entered into by the tarwad with Lonappan would amount to a lease and answered the same in the negative. Despite such a finding, the trial court did not grant any relief to the plaintiffs in respect of items 1 to 3 properties in the light of Ext.B22 purchase certificate. The trial court, in the circumstances, passed a decree in favour of the plaintiffs as prayed for in respect of the remaining items of properties. The plaintiffs S.A. No. 584 of 1999 5 challenged the decision of the trial court in appeal. It is seen that the stand taken by the plaintiffs in the appeal was that the purchase certificate is one obtained by the second defendant in a proceeding in which they are not parties and that therefore the same is not binding on them. The appellate court found that in Ext.B4 application preferred by the second defendant before the Land Tribunal for purchasing the right, title and interest in the properties from the landlord, the manager of the tarwad of the plaintiffs was arrayed as a party. According to the appellate court, in so far as the manager of the tarwad of the plaintiffs was arrayed as a party, the same binds all the members of the tarwad. On the aforesaid basis, the appellate court confirmed the decision of the trial court. The plaintiffs are aggrieved by the decision of the trial court as confirmed by the appellate court in so far as it relates to the plaint items 1 to 3 properties. 4. Heard the learned counsel for the appellants as also the learned senior counsel for the contesting respondent, the second defendant. 5. The learned counsel for the appellants contended that in so far as the materials on record indicate beyond doubt that there was a preliminary decree for partition of the properties of the tarwad of the plaintiffs, the appellate Court ought to have held that the tarwad of the plaintiffs was not in existence and that therefore, the purchase certificate obtained by the second defendant from the Land Tribunal thereafter S.A. No. 584 of 1999 6 arraying the manager of the non-existent tarwad as a party is not binding on the members of the tarwad including the plaintiffs. 6. Per contra, the learned senior counsel for the contesting respondent, placing reliance on sub–section (1) of Section 104 of the Kerala Land Reforms Act, contended that when a proceedings is initiated before the Land Tribunal in respect of a property held by a joint family, it is not necessary to implead all the members of the joint family in such proceedings. It was pointed out that it is suffice in such cases to implead the manager of the tarwad and orders and purchase certificates issued in such proceedings on that basis are valid and binding on all the members of the tarwad. It was also pointed out by the learned senior counsel that the plaintiffs admit in the plaint itself that the tarwad is in existence and that if the tarwad was in existence at the time of institution of the suit, the plaintiffs cannot be heard to contend that the tarwad was not in existence at the time when proceedings before the Land Tribunal was initiated by the second defendant. It was also contended by the learned counsel that even if it is found that Ext.B22 is not binding on the members of the tarwad including the plaintiffs, in so far as it is contended by them that they are entitled to fixity under the Kerala Land reforms Act, that question should have been referred to the Land Tribunal for adjudication, as that is a question required to be decided by the Land Tribunal in terms of the provisions of the Kerala Land Reforms Act. 7. As regards the alternative argument advanced by the S.A. No. 584 of 1999 7 learned senior counsel for the contesting respondent that even if it is found that Ext.B22 purchase certificate is not binding on the plaintiffs, the plaintiffs are not entitled to the decree sought for in the suit in respect of plaint items 1 to 3 properties without there being an adjudication as to the claim of the second defendant over items 1 to 3 properties by the Land Tribunal, the learned counsel for the appellants contended that the question has already been decided by the court in the suit and that therefore, there is no need for a reference for the said purpose. 8. Having heard the learned counsel on either side, the substantial questions of law on which notice was issued to the respondents are re-framed with notice to the parties thus: (i) Does Ext.B22 purchase certificate obtained in a proceedings in which the plaintiffs are not parties bind the plaintiffs?. (ii) If the answer to question (i) is in the negative, are the plaintiffs entitled to the decree sought by them in the suit? 9. True, the plaintiffs proceeds in the plaint on the basis that they are members of an undivided Hindu joint family. As regards the averments made by the plaintiffs to that effect in paragraph 3 of the plaint, the stand taken by the second defendant in the written statement was that the plaintiffs cannot be deemed to be members of an undivided family in the light of the preliminary decree passed in O.S. No. 21 of 1946 S.A. No. 584 of 1999 8 on 30.6.1948 and that the tarwad of the plaintiffs is no longer in existence. Incidentally, in so far as Exts. A1 and A2 are executed by the receivers appointed by the court in O.S. No. 21 of 1946, I have called for a report from the Sub Court, Ottapalam in terms of the interim order dated 9.11.2018 to ascertain the present stage of the said suit and also to ascertain whether the receivers appointed in the suit have been discharged. In response to the same, the Sub Court, Ottapalam has informed this Court that the said suit has been disposed of finally on 30.6.1948 and the receivers have been discharged thereafter based on a joint statement filed by the parties on 10.7.1948. It is thus evident that the suit O.S. No. 21 of 1946 was one disposed of on 30.6.1948 by passing a preliminary decree. If a suit is instituted for partition, it cannot be said that the tarwad is in existence thereafter, for it is settled that when a definite and unequivocal intention is expressed by one or members of a joint family to separate himself/themselves from the family and enjoy his/their share separately, the same would amount to partition [See **Kalyani** v. **Narayanan** (1980 Supp SCC 298)]. Sub section (1) of Section 104 of the Kerala Land Reforms Act reads thus:- **104. Proceedings by or against joint families, etc.** - (1)Where, in any proceeding under this Act, a joint family is a party, it shall be sufficient to implead the manager, karanavan or yajaman and the senior most male member of such family and, in the case of a Marumakkathayam or Aliyasanthana family, also the karanavan or yajaman of each tavazhi or kavaru, but any other member of the family shall have the right to get himself impleaded as a party. S.A. No. 584 of 1999 9 It is explicit from the quoted provision that it applies only when a proceedings is instituted against a tarwad. If the tarwad is not in existence as on the day on which Ext.B4 application was preferred by the second defendant, the provision contained in sub section (1) of Section 104 may not come to the aid of the contesting respondent and it was obligatory for the contesting respondent to implead all the members of the tarwad while claiming purchase certificate in respect of the properties obtained by him from the first defendant. In so far as the second defendant has obtained purchase certificate in a proceedings in which all the members of the tarwad were not parties, the same would not bind the members who were not parties to the proceedings. The next question is as to whether the plaintiffs are entitled to the decree sought for in the suit on that sole basis. As noted above, the contention raised by the learned senior counsel in this connection was that if it is found that Ext.B22 purchase certificate is not binding on the plaintiffs, insofar as the contesting defendant claimed that he is entitled to fixity in respect of items 1 to 3 properties under the Kerala Land Reforms Act, the same is a matter to be considered at the first instance by the Land Tribunal. I am in complete agreement with the said argument advanced by the learned senior counsel for the contesting respondent. In the light of the provision contained in Section 125(3) of the Kerala Land Reforms Act, the jurisdiction of the civil court to adjudicate such questions are excluded. The questions formulated for decision are thus answered S.A. No. 584 of 1999 10 accordingly. In the result, the second appeal is allowed in part, the impugned decisions of the courts below are set aside insofar as it relates to items 1 to 3 properties, and the suit is remitted to the trial court for fresh disposal in so far as it relates to the said 3 items of properties. It is directed that the trial court shall refer the plea of tenancy raised by the second defendant to the Land Tribunal concerned for its decision and shall decide the suit in relation to the said properties having regard to the finding rendered by the Land Tribunal in the reference. The parties shall appear before the trial court for further proceedings pursuant to this judgment on 15.01.2019. It is made clear that the decree and judgment, insofar as it relates to the remaining properties, would stand and the plaintiffs are entitled to execute the same. **Sd/-** **P.B.SURESH KUMAR, JUDGE** PKK